F 128 

.47 

.C64 



c^pv 1 Removal of County Clerk 

GUMBIiETON. 



VIEWS 



OF 




HENRY L. CLINTON, 



IN REGARD TO THE ACTION OF 



Gov. LUCIUS ROBINSON, 

IN REMOVING 

HENRY A. GUMBLETON, 

Clerk of the City and County of New York, 

New York,^March 31st, 1879. 




MR. GUMBLETON FOUND GUILTY OP PAYING 
NEARLY FIVE DOLLARS INTO THE CITY TREASURY 
MORE THAN THE CITY WAS ENTITLED TO. 

IN REGARD TO FILING TRANSCRIPTS OP FEES IN THE 
FINANCE DEPARTMENT, MR. GUMBLETON WAS GUIL- 
TY OP OBEYING THE LAW WHICH SAYS THAT THE 
TRANSCRIPTS SHALL BE MADE IN SUCH FORM AS 
SHALL BE PRESCRIBED BY THE COMPTROLLER. 

GOVERNOR DECIDES THAT MR. GUMBLETON SHALL BE 
REMOVED BECAUSE HE DID NOT OBEY A STATUTE 
WHICH WAS REPEALED EIGHTEEN YEARS AGO, BUT 
DID OBEY A STATUTE NOW IN FORCE. 

VIOLENT AND INTEMPERATE LANGUAGE USED BY THE 
GOVERNOR. 






'S. 



Removal of County Clerk 
GUMBLETON. 



VIEWS 



HENRY L. CLINTON, 



IN RECiARD TO THE ACTION OF 



Gov. LUCIUS ROBINSON, 



IN lasMOviNt; 



HENRY A. GUMBLETON, 

Clerk of the Cyty anl> County of New York. 



The removal of Mr. Gumbleton from the office of County 
Clerk, to which he was elected by a majority of 43,000, is a sub- 
ject which interests the whole community. I have carefully 
read the charges of the ao-called Committee of the Bar Associ- 
ation, Mr. Gumbleton's answer, and the Governor's opinion. I 
think a calm and dispassionate examination of the'subject will 
show that the Governor's course was wholly unjustifiable, and 
that there was no cause whatever for the removal of Mr, 
Gumbleton. 



MR. GUMBLETON FOUND GUILTY OF PAYING 
NEARLY FIVE DOLLARS INTO THE CITY 
TREASURY MORE THAN THE CITY WAS 
ENTITLED TO. 

The principal ground on which he was removed was the 
charge of demanding and receiving fees in excess of those al- 
lowed by law. 

Had Mr. Gumbleton designedly, and with a view to his own 
pecuniary gain, demanded excessive and illegal fees, he would 
receive no sympathy at the hands of those now so outspoken in 
his defense. It is alleged that he "charged or caused, or per- 
mitted to be taken or received," for filing in his office * * * 
"and recording in the books of public record in said ofiice no- 
tices of the pendency of actions," fees in excess of those allowed 
by law. 

The complainants in their charges and specifications aver 
that in certain cases the clerk charged for more words than the 
notices of the pendency of actions contained. If, when these 
notices were left at the County Clerk's office, mistakes occured 
in estimating the number of words, such mistakes were made 
through the inadvertance of Mr. Gumbleton's subordinates. 
But when five learned lawyers — Artemus H. Holmes, Henry E. 
Knox, George DeForest Lord, Charles F. McLean, J. Adriance 
Bush — examine papers, count the words themselves, their com- 
bined skill being directed to this one matter, and their acumen 
in the double capacity of lawyers and reformers is focused on 
this one subject we would suppose that in so simple a matter 
they would be moderatel}' accurate. Yet it appears that by the 
sworn answer of Mr. Gumbleton, that these notices contained 
about 2,500 words more than they were represented to contain 
by these complainants. Their under-estimates far exceed the 
over-estimates of Mr. Gumbleton's subordinates. The over- 
charges, instead of aggregating, as represented, $18, amount to 
less than $5. This sum was not, nor was any part of it, appro- 
priated by Mr. Gumbleton to his own use. It was all paid into 
the City Treasury. There is no pretence that Mr. Gumbleton 



put a shilling of the over-charges in his own pocket. The prin- 
cipal charge of which Mr. Gumbleton was convicted by the 
Governor, and upon which he was removed from office, was 
that he put about $5 into the City Treasury more than the city 
had a right to receive. 

IN REGARD TO FILING TRANSCRIPTS OF 
FEES IN THE FINANCE DEPARTMENT, MR. 
GUMBLETON WAS GUILTY OF OBEYING 
THK LAW, WHICH SAYS THAT THE TRAN- 
SCRIPTS SHALL BE MADE IN SUCH FORM 
AS SHALL BE PRESCRIBED BY THE COMP- 
TROLLER." 

The other charges of which tlie Governor alleged in his de- 
cision Mr. Gumbleton Avas guilty were of a minor and subordi- 
nate character. The Governor claims that Mr. Gumbleton neg- 
lected " to transmit to the Comptroller of the City of New 
York a transcript of the accounts of fees, perquisites and 
emoluments collected and received as the law requires." 

The law provides in express terms that transcripts (jf such 
accounts " shall be made in such form as shall be prescribed by 
the Comptroller of the City and County of New York.' From 
the passage of tliis law, in 1847, until 1868 or thereabouts, 
transcripts of the Uciniml accounts were transmitted by the 
County Clerk to the Comptroller's office. Tliese, it seems, were 
vohiminous, bulky and cumbersome. The then Comptroller, as 
far as can be ascertained, claiming the right under the law to 
prescribe the form of the transcripts of accounts, directed that 
summarized instead of itemized accounts should be filed in his 
office. Subsequently tlie accounts were rendered in that form. 
Upon his accession to the office of County Clerk, Mr. Gumble- 
ton in this matter conformed to the practice of his predecessors, 
and made out the accounts in the form he understood to have 
been prescribed by the Finance Department for the past ten 
years. In his answer he stated that he had in his office a 
record of all the items, and he had no objection to making out 



iiemized accounts for the future and for the pgest. If, in his 
anxiety to obey the laAv in transmitting the accounts in the 
form prescribed b}^ the Comptroller, he had erred, he stood 
ready to rectify the error. Andrew H. Green, when he was 
Comptroller, never complained that the form of these tran- 
scripts was not correct. 

KEEPING BOOKS CONTAINING A STATEMENT 
OF FEES, etc. 

The Governor in his decision claims that Mr. Gumbleton did 
not keep the books required by statute containing a statement 
of the fees, etc., received by him and his assistants. The com- 
plainants in their charges and specifications alleged on in- 
formation and belief, that Mr. Gumbleton had not — while he, 
in his answer, swore positively that he had — kept such books. 
Here an issue of fact was joined. If Mr. Gumbleton had not 
kept sucli books that was a matter to be proved, not assumed 
by the Governor. He says the " specimens of the books " pro- 
duced before him fall short of the requirements of the statute. 
Mr. Gumbleton, on the contrary, avers, and, I understand, is 
read}^ to show, that they, in each and every partieular, were 
kept as the law requires. These books are very numerous 
The great mass of them could not be removed to Albany, so 
that upon the argument as to the sufficiency of the answer the 
Governor, by a momentary glance at them, could determine 
whether, in their numerous details, they were in every 
particular kept as the law required. We all know the affliction 
under which the Go.vernor has labored for a long time. The 
condition of his eyes has been such that for a year or two he 
has been almost Avholly disabl^^d from reading or writing. We 
can readily understand how he might form very erroneous 
notions as to the contents of written |)apers or books during an 
argument. The Governor says these books " do not show any 
receipts for searches." There was no charge that Mr. Gumble- 
ton did not keep correct accounts of his fees for " searches." 
Hence, there was no occasion to show the Governor books 
specifying these fees. The statements of the Governor, as I 
uabrstiiil, ar3 wiiiljr fully incorrect in regard to the contents 
of the books kept by Mr. Gumbleton as County Clerk. 



THE GOVERNOR DECIDES THAT MR. OUMBLE- 
TON SHALL BE REMOVED BECAUSE HE DID 
NOT OBEY A STATUTE WHICH WAS RE- 
PEALED eightp:e:n years ago, but did 

OBEY A STATUTE NOW IN FORCE. 

The only remaining ground stated by the Governor or re- 
moving Mr. Gumbleton is that he did not afford the com- 
plainants the requisite facilities for examining the records o 
his office. His conduct in this_^pai:ticular, as stated in his 
answer, shows that he was guilty of no infraction of law. He 
allowed the complainants all the facilities the law required — 
even more. They demanded far more than the law of 1847 
(under which they professed to act) permitted. They de- 
manded not only to inspect the books, but to examine the 
clerks and subordinates upon'' all matters connected with the 
office. They assumed all the authority and all the rights which 
would belong to a committee of the Assembly or of the Senate, 
duly appointed and empowered to_send for persons and papers. 
Section 9, chapter •i3"2, laws of IS^Tj'says that the books " shall 
at all times during office hours be open to the inspection, with- 
out fee or charge therefor, of all persons desiring to examine 
the same." No right is here given to examine clerks and sub- 
ordinates as to the general conduct and management of affairs 
connected with the County Clerk's office. It was soon found 
that the liberty given by the law of 1847 to any and everybody, 
whether from idle curiosity or any other motive, to examine 
books resulted in defacing them and in obstruction to public 
business. Therefore, the law under which these complainants 
• acted was repealed. Mr. Gumbleton was removed from office 
because (as is claimed) he did not conform to a law Avhich was 
repealed, and because he did obey a law which is not re- 
pealed and is now in force. The Governor in his opinion says : 
" Every citizen of the county has the right under the law to 
examine those books." The law upon which the Governor 
bases this opinion was repealed eighteen years ago .' 

Chapter 172 of the laws of 1861 provides as follows : Section 
1. "It shall be the duty of the Clerk of the City and County of 



"New York, and of the Register of said city, to assign one or 
"more suitable persons in their respective offices to have custody 
"of the records in said offices during office hours, by Avhom, or in 
"whose presence, under the direction of said Clerk and Register 
"respectively, all examinations of such records shall be made." 
This necessarily repeals so much of the law of 1847 as provides 
that the books or records " shall, at all times duriug office hours, 
be open to the inspection" * * ^' * " of all persons desiring 
to examine the same." The act of 1861 makes it the duty of 
the County Clerk to assign suitable persons, by whom "all ex- 
aminations of such records shall be made." In other words, 
they and they alone must examine the records, unless they see 
fit in their presence to permit others to inspect them. Other 
persons have no right whatever to examine the records unless 
the County Clerk or his subordinates, detailed to keep charge 
of them, see fit to permit them to do so. Tlie second section of 
the act of 1861 provides that " all acts and parts of acts incon- 
sistent with this act are hereby repealed." 

Tlie law of 1847, in the particular referred to, is totally in- 
consistent with the act of 1861. The former confers upon all 
persons the right to examine the records during the office hours 
as much as they please. The latter takes away that right and 
confers upon the Clerk and his subordinates the exdusive right 
in their discretion to examine the recoids. 

Although it would seem that the law is clear, yet Mr. Gum- 
bletou, as a law-abiding citizen, submitted the question as to the 
legality of his action in conforming to the statute of 1861, in- 
stead of 1847, to the courts. The legal question has been 
argued before the General Term of the Supreme Court. The 
probability was that whatever way that court decided, the case 
would be taken to the Court of Appeals. The Governor was 
asked by Mr. Gumbleton's counsel to aw^ait the decision of the 
court of last resort. He promptly declined. 

VIOLENT AND INTEMPEiiATE LANGUAGE 
USED BY THE GOVERNOR. 

These are the grounds on which the Governor removed County 
Clerk Gumbleton, than whom no County Clerk in the last thiity 



9 • 

years ever discharged the duties of the oflfice with gi-eater fidelity 
and integrity. To say nothing of the Governor's course in re- 
moving Mr. Gumbleton, without giving him any trial and with- 
out proof of the truth of any of the material charges, I cannot 
understand why his Excellency should indulge in such extraor- 
dinary invective. It is incomprehensible that the Governor, 
upon such meagre facts (had Gumbleton erred in regard to all 
of them there would have been no cause for removal), should 
utter such violent language. 

Governor Eobinson, in speaking of the position taken in favor 
of Mr. Gumbleton, that the ;ees received by him were not greater, 
but in many instances less than those taken by his predecessors, 
says " a toleration of his course will naturally and surely lead 
to a disregard of law in the community and to a state of 
anarchy." 

How a persistent and conscientious observance of !aw will 
" surely lead to a disregard of all law " is a profound mystery. 
I can understand how" we might reach " a state of anarchy " if 
the example of the Governor's appointee to the office of County 
Clerk, in breaking into the office in the dead of night in de- 
fiance of civil and criminal law, is to be imitated by other citi- 
zens. The Governor says of Mr. Gumbleton : 

" He has even attempted to justify the course which he has 
"hitherto followed, and openly declares his right and intention to 
"continue it in the future." 

Mr. Gumbleton stated that he had endeavored to discharge 
the duties of his office faithfully and conscientiously. 

The language of his answer is : 

" Conscious of an earnest effort to discharge his duties faith- 
"fully and to the commendation of the profession and the public, 
"he cannot but feel the injustice of his accusers. It is possible 
"he may have technically erred, but he knows that he has not 
"consciously offended." 

This is the language which calls forth such violent denuncia- 
tion on the part of the Governor. He further says : 

" Inasmuch as it seems to me that in that course he 
"has broken over almost every requirement of the law he was 
"sworn to obev, it leaves but one possible course open to nae." 



10 



His Excellency proceeds. 

" If the Governor, who is specially charged and bound by his 
"oath to take care that the laws are faithfully executed, should 
"by a dismissal of these charges give an implied sanction to a 
"continuance of these unlawful practices, he would himself be- 
"come a partner in them, and the hope of maintaining a Govern- 
"ment of law would disappear." 

Does the course pursued by Mr. Gumbleton in obeying the 
law of 1861, which is still in force, instead of that portion of 
the law of 1847 which is repealed ; does his offer, if he had 
technically erred in filing in the Finance Department sum- 
marized accounts, to make them out for the future and for the 
past in an itemized form ; does the fact that Gumbleton paid 
nearly five dollars into the Treasury more than the city was en- 
titled to ; does the conduct of Gumbleton in any or in all these 
particulars justify such intemperance and violence of language 
on the part of the Chief Executive of the State ? 

Did Hubert O. Thompson share the Governor's dreadful 
forebodings that the continuance of the modest and incorrupti- 
ble Gumbleton in ofiice would "surely lead to a disregard of all 
law in the community ;" that if Gumbleton remained in office 
four hours and thirty minutes longer " the hope of maintaining 
a Government of law would disappear?" Did the doughty and 
valiant Thompson " become a partner " with the Governor in 
these direful apprehensions of impending evil ? Who would 
have believed that the utter destruction of "a Government of 
law " — that universal chaos — could be averted by installing 
Hubert O. Thompson in the office of County Clerk ? No wonder 
he broke in ! 



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